Between President Biden’s Administration and that of Donald Trump, there are several points that are diametrically opposed. One of them lies in their approach to immigration policy. To discuss this issue, attorney Jairo Hernández, a specialist in immigration issues, with a J.D. in Law from the University of Wisconsin, explained what may be some of the measures or legal remedies that Biden can implement to benefit migrants, especially Latinos.
Taking advantage of the presence of attorney Hernández on ElAmerican‘s YouTube Channel, he was also consulted about the Deferred Enforced Departure (DED) measure approved by Trump and what is its difference with Temporary Protected Status (TPS) -Biden’s campaign promise that’s been recently approved, and what is happening with work permits for Venezuelans whose approval was to come later.
He was also asked what will happen to asylum applications following the elimination of Mexico -and other Central American countries- as a “safe third country.” Likewise, he was asked about which Obama-era policies could be replicated by Biden and whether it will be possible to carry out the promise of immigration reform.
Should Biden help migrants?
Regarding the case of DED and TPS, attorney Hernández stated “it must be understood that these are benefits, and what’s happening to Venezuelans is a good thing (…) DED is in force, it is a mechanism that is approved by the [current] President but which former President Donald Trump had already established. So Venezuelans since that time have had the benefits of DED.”
However, Hernández made a clarification: “there is a fairly common confusion regarding the work permit that comes with the DED. When the President approved DED he also ordered the Department of Homeland Security to begin a process to give work permits to Venezuelans under the protection of the DED.”
The lawyer explained that for the DED “one does not need to apply” because if you are Venezuelan in the United States “you already have the benefits, as long as you are not part of a few exceptions,” but for the work permit you must apply. This is because, while this is a benefit that comes with the DED, it is a different process. “That’s why there is a big confusion out there,” Hernández outlined.
Regarding TPS, Hernández explained that it is a mechanism that is “just in process now. It is a promise that has not yet been fulfilled.” (At the time of publication of this interview [see note below], Biden has already approved TPS for Venezuelans.)
According to the specialist, DED and TPS have very few differences. “The main difference is where it comes from, from what agency of the government,” he explained. “DED comes from the President, TPS comes from the Department of Homeland Security.”
It was also explained that TPS “is something more established,” because it’s something much more developed over time and is designed for “situations similar to that of Venezuela.”
But, just as TPS is a more formalized process it is also more difficult to eliminate, and it is also more difficult to approve. DED is a much easier administrative process.
What has also caused some confusion is that the form to fill out for the work permit for Venezuelans has not yet been published by the United States Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security. Hernández explained that Trump did indeed order that all steps be taken to make this form available, but it is not ready as of yet.
The DED and the work permit are, in short, different processes that should not be confused.
Beyond the TPS and DED related to Venezuelans, there are many policies and decisions on immigration issues by the Biden Administration that may or may not benefit the Latino community.
For example, Biden announced that several Central American countries, including Mexico, will no longer be a safe third country; so there is some question as to what would happen to asylum applications.
According to Mr. Hernández, “this point is very important, because many people are being denied asylum because they are being forced to apply in Mexico before applying in the United States.”
“This measure is definitely going to benefit people because although you can call any country ‘a safe third country,’ the reality has to be there. For a country to be safe it must have enough security to safeguard your life, stability, mechanisms so that people arriving there can live decently; and Mexico, and other Central American countries do not seem like appropriate countries to be ‘a safe third country’.”Hernández on Biden’s Administration’s policy.
Regarding what mechanisms, approaches or regulations of the Obama Administration can be replicated in the current administration – seeing with concern that Obama was the one who deported the most Latinos in U.S. history – the attorney said that he sees as much more likely to happen the policy of only deporting migrants with criminal records.
“This is only a prediction, but I do believe that the Biden Administration will show strength in deporting people with criminal records in the United States. Analyzing the typical policy between Republicans and Democrats, although Biden comes in with all these benefits for immigrants, he also has to show a strong hand in demonstrating why he is helping people and that it is not something simple like letting anybody in as make yourselves at home, as we Latinos say “mi casa es su casa”, explained the lawyer emphasizing that the American government should help families and hardworking people who deserve and have earned the opportunity to be in the USA, not those with criminal records.
“People who come here with a vision of the future, to work, to be legal, who are in danger for their lives in other countries, should be given a hand and allowed to enter. But those who come here to commit crimes should be told that they are not welcome.”
Author’s note: this interview was conducted on March 1, 2021.